United States District Court, W.D. Texas, Waco Division
PITMAN, UNITED STATES DISTRICT JUDGE
the Court in the above-entitled matter is Defendant Art
Briles's Motion for Leave to Designate Responsible Third
Party, which seeks to designate Tevin S. Elliott as a
responsible third party in the above-entitled matter. (Dkt.
94). Having considered the filing and the relevant law, the
Court hereby GRANTS Defendant Briles's Motion.
Jasmin Hernandez (“Plaintiff”), a former student
at Baylor University who was sexually assaulted by fellow
student Tevin S. Elliott (“Elliott”) during her
freshman year, asserts claims against Baylor under Title IX
of the Education Amendment Acts of 1972 and under the
common-law doctrine of negligence. Plaintiff also asserts
negligence claims against former Baylor Head Football Coach
Art Briles (“Defendant Briles”) and former Baylor
Athletic Director Ian McCaw (“Defendant
McCaw”). Elliott was convicted of sexually
assaulting Plaintiff on April 23, 2015. See Tevin Elliott
v. State of Texas, No. 10-14-00112-CR, 2015 WL 1877052,
at *1 (Tex.App.- Waco, April 23, 2015, pet. ref'd).
Court's jurisdiction over Plaintiff's state law
claims is supplemental to its federal question jurisdiction.
28 U.S.C. § 1367(a). A federal court exercising
supplemental jurisdiction over state law claims must apply
the substantive law of the state in which it sits.
Sommers Drug Stores Co. Employee Profit Sharing
Trust, 883 F.2d 345, 353 (5th Cir. 1989) (citing
Erie Railroad v. Tompkins, 304 U.S. 64, 58 (1938)).
The Court therefore applies Texas law to the instant motion.
Chapter 33 of the Texas Civil Practice and Remedies Code, a
defendant who is sued in tort may reduce his liability by a
percentage of responsibility attributed to a responsible
third party. Strickland v. Buffalo Wild Wings, Inc.,
No. 3:14-CV-4252-B, 2015 WL 4269968, at *1 (N.D. Tex. July
14, 2015) (citing Tex. Civ. Prac. & Rem. Code §
33.002). Section 33.004(a) of the Code permits a defendant
“to designate a person as a responsible third
party” in a lawsuit, so long as the defendant does so
at least 60 days before trial. Tex. Civ. Prac. & Rem.
Code § 33.004(a). A responsible third party is
“any person who is alleged to have caused or
contributed to causing in any way the harm for which recovery
of damages is sought.” Ellis v. United States,
673 F.3d 367, 372 n.3 (5th Cir. 2012) (quoting Tex. Civ.
Prac. & Rem. Code § 33.011(6)). “A court shall
grant leave to designate the named person as a responsible
third party unless another party files an objection to the
motion for leave on or before the 15th day after the motion
is served.” Tex. Civ. Prac. & Rem. Code §
Briles moved to designate Elliott as a responsible third
party well in advance of the applicable
deadline. A finder of fact may conclude that
Elliott, in sexually assaulting Plaintiff, caused or
contributed to causing the harm for which she seeks relief.
Finally, though more than fifteen days have passed since the
filing of the instant motion, neither Plaintiff, Defendant
Baylor, nor Defendant McCaw has filed an objection.
Applicable law therefore dictates that the Court grant the
instant motion. Tex. Civ. Prac. & Rem. Code §
33.004(f) (“A court shall grant leave to designate the
named person as a responsible third party unless another
party files an objection to the motion for leave on or before
the 15th day after the motion is served.”); see,
e.g., Constante v. General Motors, LLC, No.
SA-12-CV-757-XR, 2013 WL 1729722, at *1 (W.D. Tex. April 23,
2013) (“Since no objections to the motion were filed
within 15 days of the motion being filed and electronically
served on Plaintiffs counsel, the Court must grant the motion
pursuant to [S]ection 33.004(f).”).
33.004(1) of the Code provides
After adequate time for discovery, a party may move to strike
the designation of a responsible third party on the ground
that there is no evidence that the designated person is
responsible for any portion of the claimant's alleged
injury or damage. The Court shall grant the motion to strike
unless a defendant produces sufficient evidence to raise a
genuine issue of fact regarding the designated person's
responsibility for the claimant's injury or damage.
Tex. Civ. Prac. & Rem. Code § 33.004(1). Should
Plaintiff desire to file a motion under Section 33.004(1),
such a motion must be filed no later than the deadline for
filing dispositive motions.
this Court hereby GRANTS Defendant Briles's Motion for
Leave to Designate Responsible Third Party, (Dkt. 94).
Pursuant to the Texas Civil Practice and Remedies Code, Tevin
S. Elliott is hereby designated as a ...